Annual, Sick and Other Leaves

 We have tried to prepare this document in "nontechnical" terms, avoiding the more formal language of the South Dakota Codified Law (SDCL), Agreement Between South Dakota Board of Regents and Council of Higher Education (COHE), Administrative Rules of South Dakota from the Bureau of Personnel and/or the Board of Regents Policy Manual. If, in our efforts to make this easy to understand, we have omitted or misstated any of the provisions, the aforementioned references must remain the final authority.

ALL INFORMATION IS SUBJECT TO CHANGE THROUGH EXECUTIVE, LEGISLATIVE OR REGENTAL ACTION.

Words used in the masculine gender include feminine and neuter.

Throughout this document, reference is made to the commissioner. This would refer to the Commissioner of the Bureau of Personnel.

Thank you to Louise Loban, Benefits Specialist at South Dakota State University for her help in compiling the following information.

LEAVE ACCRUAL

THOSE WHO EARN LEAVE

• Career Service - Career Service employees in a permanent classification are eligible to earn leave. Appointments of less than full-time earn leave on a pro-rated basis.
• Faculty - Faculty unit members who have ten (10), eleven (11), or twelve (12 ) month appointments, exclusive of summer session appointments and who are required to perform regular duties during student vacation periods, shall accrue annual leave. Normally, faculty appointments do not earn annual leave but rather receive the student holidays. Faculty appointments of 6 months or more regardless of percent time earn pro-rated sick leave. Summer Supplemental Appointments - Permanently budgeted 9-month employees with summer appointments or supplemental contracts issued during the academic year, earn sick leave (not annual leave) on a pro-rated basis according to the percent time they are employed . Their maximum accrual will be adjusted to reflect such supplemental duties but the 9.34 hours earned per month limitation does apply.
• Exempt - Exempt non-faculty appointments of 6 months or more, 50% time or more, earn sick and annual leave on a pro-rated basis.

• Career Service - Career Service Temporary and Seasonal Appointments.
• Faculty/Exempt - Faculty/Exempt appointments of less than 6 months.
• Graduate Assistant/Students - Graduate Assistants and all other students are NOT eligible for leave accrual regardless of percent time.  (SDCL Chapter 3-6)

ANNUAL (VACATION) LEAVE

Each employee in a permanent classification in state government is entitled to vacation leave with pay. Less than twelve (12) month faculty employees who are not required to work the student holidays do not earn annual leave, but rather receive the student holidays.  Vacation leave credits start with the date of employment but cannot be used or paid until six months of continuous service in a leave accruing position has been completed.

Requests for vacation leave must be approved by an employee's immediate supervisor prior to the time of departure. Leave requests may not exceed the amount accumulated.

Full-time employees with less than 15 years of service accrue no more than 10 hours of vacation leave a month. Those employees with more than 15 years of service accrue no more than 13.34 hours of vacation leave per month. The 15 years of service does not have to be consecutive. Employees who work less than full time shall accrue prorated vacation leave based on the number of hours paid in the pay period.

An employee whose appointment has expired or who has been laid off or terminated for cause must take their earned vacation leave in a lump sum.  If an employee who is terminating employment is on vacation leave, no other type of leave may be used.

Transfer. When an employee transfers, all accumulated leave must be transferred to the new department. 55:01:22:01

Waiting Period for Usage. The six (6) month period starts on the same date leave accrual begins however, there is no extension for leave without pays. This is an important point to remember when granting leave without pay. The waiting period for usage applies only to employment in a permanent classification. Therefore, the time a position is being filled on a temporary basis does not apply to the six month waiting period. Only time in a leave accruing position counts.

Leave Requests. Leave requests may not exceed the amount accumulated. Leave is accrued on a per hour basis. An employee may only use the hours they have accrued at any point in time. For example: An overtime eligible employee has 32 hours of annual leave on February 28 and wants to take the first week of March off (40 hours). The employee has 32 hours of leave accrued plus what they would accrue on those 32 hours of annual leave (1.82 hours). The remainder of the week (6.18) will be leave without pay. There is no guarantee that the employee will accrue the full 10 hours by the end of the month. If the employee were overtime ineligible, they would have a leave without pay for the full 8 hours with a balance of 1.82 in their annual leave bank.

If the employee was overtime ineligible, he would have a leave without pay for the full 8 hours with a balance of 1.82 in their annual leave bank.

Leave can be used as it is accrued during the course of the month. For example: An employee has a 10 hour balance on January 31, and wants to use 16 hours on February 24th & 25th. That is OK because by the 23rd they would have accrued an other 7.5 hours for a total of 17.5. They can use 16, have 1.5 left, and accrue 2.5 (the balance for the month).

SICK LEAVE

A state employee in a permanent classification is entitled to sick leave with pay may accrue up to 9.34 hours per month. Employees who work less than full time shall accrue prorated sick leave based on the number of hours paid in the pay period. Sick leave may be granted for personal illness, pregnancy and related disabilities, exposure to contagious diseases that would endanger the health of fellow employees, required eye and dental care, required medical examination, or inpatient or outpatient treatment in approved centers for alcohol, drug abuse or psychiatric or counseling care. Employees who are on approved leave, except terminal vacation leave, and become injured or ill may use sick leave. 

The appointing authority may, with the approval of the DSU Human Resources Office and the Commissioner of the Bureau of Personnel, require the employee to produce a doctor's statement to support a request for sick leave.  (ARSD 55:01:22:02)

Personal Leave. An employee may use up to 40 hours of accumulated sick leave annually for the following purposes:

1. A death in the immediate family*;
2. The temporary care of members of the immediate family*;
3. Volunteer police or rescue work; and
4. A call to state active duty of military reserve or national guard members 55:01:22:02.04

Personal leave is recorded on a calendar year basis (January 1 - December 31).  This leave can NOT be advanced, accumulated, or donated.

*Immediate Family is defined as the employee's spouse, children, mother, father, mother-in-law, father-in-law, daughter-in-law, son-in-law, brothers, sisters, grandparents, grandchildren, stepchildren, and stepparents; 55:01:01:01(20).

Q: Can Personal Leave be used by grandparents for the care of a child and/or new grandchild?

A: Yes. This situation would meet the criteria of " temporary care of members of the immediate family" outlined in the Personal Leave provisions. This could apply to any immediate family member who would need temporary care. The key word would be "care" - "care" should be needed, NOT just going for a visit.

Personal Leave is recorded on a calendar year basis (January 1 - December 31). This leave can NOT be advanced, accumulated or donated.

Advanced Sick Leave. An employee who has been employed by the state in a permanent position for one year or more may request advanced sick leave for not more than 28 days (224 hours) once all other leave is exhausted. An employee requesting advanced sick leave must submit a signed request supported by a statement from their doctor. An employee who is a Christian Scientist may submit a statement from a Christian Scientist practitioner. The request must be approved by the appointing authority and the commissioner before the advance is granted. An employee who terminates employment before advanced sick leave has been repaid must repay the remaining advanced hours at the employee's current rate of pay . (ARSD 55:01:22:03)

To request Advanced Sick Leave the following information must be forwarded to the Human Resources Office:

• A Signed copy of the Advanced Sick Leave Request Form (under "Forms")
• Statement from the Doctor stating medical necessity

This information will then be reviewed by HR and the President. If approved, a letter will be written and forwarded to the Personnel Officer of the Board of Regents; and then to the Commissioner of the Bureau of Personnel.

Annual leave can NOT be advanced under any circumstances.

Maternity Leave. The ARSD 55:01:22:08 Absence for maternity purposes has been repealed as the use of sick leave must be medically necessary.  The current policy is that the mother may use sick leave for the first six weeks from the date of birth of the child, providing she has that much accumulated.  The use of any sick leave beyond the initial six weeks would require a statement from the doctor of medical necessity.  After the sick leave, personal leave, annual leave, compensatory time (if applicable) or leave without pay may be used up to the 12 weeks of Family Medical Leave Act (see below) depending on the individual's leave balances and the leave the employee is entitled to use.  This policy is the same for adoption..

 FAMILY AND MEDICAL LEAVE ACT

Family and medical leave is available to an employee of the state who has worked for twelve months or more and who has worked 1,250 hours or more. Up to 12 weeks of sick leave, personal leave, vacation leave, leave without pay, or any combination of these leaves may be taken as family and medical leave. An employee may request family and medical leave for any of the following purposes:

1. The birth of a child of the employee and care for the newborn child;
2. The placement of a child with the employee for adoption or foster care;
3. The need to care for the spouse, child, or parent of the employee if the spouse, child, or parent has a serious health condition; or
4. A serious health condition that makes the employee unable to perform the functions of the employee's position.

Employees wishing to request Family Medical Leave should provide their supervisor with at least 30 days advance notice if the need for leave is foreseeable.  Typical foreseeable events are the birth or adoption of a child or the planned medical treatment for a serious health condition of the employee or employee's family member.  If the need for leave is not foreseeable due to a change in circumstances or due to an emergency, employees should notify their supervisor as soon as practical.  Notice may be verbal, but a written request must be submitted to the supervisor to comply with record keeping requirements.  In no event may the employee or the supervisor designate leave as FMLA leave after the leave has ended.  If an employee does not give timely advance notice of the need for family medical leave that is foreseeable, the employee's supervisor may deny the leave request until thirty (30) days after the employee provides the notice.

The use of paid leave must comply with SDCL 3-6-6, 3-6-7, and 3-6-8. If sick leave is used for any part of the family and medical leave, the employee may be required to support the request with a statement from a medical doctor certifying the nature of the serious health condition.  If the employee fails to comply in a timely manner, the family medical leave request may be denied. (55:01:22:08.02)

If an employee has suffered from a serious health condition which would prevent the employee from performing the essential functions of the employee's job or which would jeopardize the safety of the work area, with the proper approval the supervisor may require medical certification before reinstating the employee.

Formal requests for Family and Medical Leave should be made in writing and filed with the Human Resources Office prior to the use through the supervisor, much like advanced sick leave.  No particular forms are required, and the HR Office will monitor when the 480 hour limit is met.  There needs to be an indication on the leave input form to monitor the use of Family and Medical Leave whether it is Annual Leave, Sick Leave, Personal Leave, Leave Without Pay, Advanced Sick Leave, or Worker's Compensation.

Please note: Being eligible for leave accrual or not does NOT determine if a person is eligible to use Family & Medical Leave. To be eligible an employee must have worked 12 months (prior service with the State counts) or more and 1,250 hours (60% time) (immediately preceding the request) or more.

Length of Leave.  Employees eligible for family medical leave are entitled to a total of twelve (12) weeks of family medical leave during the course of each calendar year; however, employees utilizing FMLA leave for the birth of a child, for the placement for adoption of a child in their home, or to provide foster care of a child can use only twelve (12) weeks for that purpose within one year of the date of birth or placement of the child.  Employees are able to take leave through a reduced schedule or for intermittent periods for their personal serious health conditions or to take care of the employee's sick family member.  However, if leave is taken due to the birth of a child or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced schedule only with the approval of his/her supervisor.  Additional FMLA leave may be granted to employees beyond the amounts mandated by the Family Medical Leave Act.  However, Board policies and CSA rules governing leaves continue to apply.

ARSD 55:01:22:08 Absence for maternity purposes has been repealed. The reason for this is that the use of sick leave must be medically necessary.

Q: Is FMLA another form of leave?

A: No. FMLA is a Federal Act that guarantees eligible employees the right to return to their job or a comparable job and maintain their benefits. Family Medical Leave can be paid leave (by using personal, sick, annual and/or comp time) or unpaid (leave without pay) or a combination of paid and unpaid leave.

Your Rights Under the Family and Medical Leave Act of 1993

For definitions of spouse, parent, child, serious health condition, intermittent leave, or reduced leave schedule, see SD BOR Policy 4:15.

MILITARY TRAINING LEAVE

Military Training Leave of up to 15 days each calendar year is granted for those qualified members of "the reserve component of the armed forces." Military leave for training shall not be granted to an employee who is on vacation leave and terminating employment. Military leave for training may not be accumulated. A temporary employee is not entitled to military leave for training. A new employee on six months probationary status is not considered a temporary employee. The appointing authority shall maintain a record of military leave taken with the regular vacation and sick leave account of each state employee. An employee requesting military leave for training must obtain a written order or letter from the commander of the employee's reserve or National Guard unit showing the dates of the training period. This notice must be submitted to the appointing authority 15 days before the date of the employee's departure for training. (ARSD 55:01:22:04) Note: Employers and employees should note the difference between units called for military training up to 15 working days with pay and units called for active duty.

As indicated in the rules, and SDCL 3-6-22 the written order or letter from the commander showing the dates of the training period must accompany the request. Military training leave should not be granted without a copy of this information to attach to the timesheet for future audit purposes.

Military training leave is NOT to be used for active duty - voluntary or not.

Q: Can military training leave be used for those employees who work weekend shifts?

A: Yes. The 15 days are limited to 8- hour days.  In an instance where the employee works a 12-hour shift 1.5 days of military leave may be used.

Employees who are on military leave will be paid the leave hours at straight time regardless of their hours worked during the week. The leave time will not be counted as hours worked. The appointing authority may require employees to report to work during hours outside of the  military leave.

Military training leave is recorded on a calendar year basis (January 1 - December 31). It can NOT be accumulated, advanced or donated.

COURT AND JURY LEAVE

If a state employee is subpoenaed to testify in court, the employee shall receive both the employee's regular salary from the state without loss of leave credits and witness fees. If the employee is subpoenaed by either party to testify in any civil or criminal proceeding because of his official capacity, he shall receive his regular salary without loss of leave credits and may receive actual expenses according to state rates, but may not receive witness fees. If an employee is a party to or witness who has not been subpoenaed for private litigation, the employee must use vacation leave or leave without pay. If a state employee is summoned to serve on a jury, the employee shall receive his regular salary without loss of any leave credits and the per diem and mileage provided for by SDCL 16-13-46. A state employee summoned either as a witness or a juror shall notify his employer at once. (ARSD 55:01:22:05)

Q: What constitutes being a "state employee" for court and jury leave?

A: Only benefits eligible employees are entitled to be paid court and jury leave.

Employees who are on court and jury leave will be paid the leave hours at straight time regardless of their hours worked during the week. The leave time will not be counted as hours worked. The appointing authority may require employees to report to work during hours outside of the court and jury leave.

Court/Jury leave is recorded on a calendar year basis (January 1 - December 31). It can NOT be accumulated, advanced or donated.

 LEAVE WITHOUT PAY

Leave of absence without pay means approved absence from duty for which the employee is not paid. The leave is available to permanent employees, may not exceed twelve weeks, and must be approved by the appointing authority. The appointing authority may submit a written request with justification for an extension of a CSA employee's leave to the commissioner of the Bureau of Personnel.  For an employee of the Board of Regents who is exempt from the career service act, the appointing authority may submit a written request with justification for an extension of leave to the Board of Regents.  Leave of absence without pay may be granted to an employee even though all of the employee's accrued annual leave has not been used. No leave credits may be earned during the authorized leave of absence without pay.  (ARSD 55:01:22:06)

Whenever a leave without pay is taken, it must be reported on your timesheet. Typically the decrease in pay will occur in the month following when the leave is taken. The accrual will also reflect the decrease in hours worked due to the leave without pay.

A South Dakota Board of Regents Request for Leave Without Pay In Excess of Three Months form must be used whenever a leave without pay exceeding three months is requested by an employee. Forms are available from the Human Resources Office.

 ADMINISTRATIVE LEAVE

This type of leave allows an employee to receive compensation for the hours that the employee would normally have worked with no loss of leave. Administrative leave shall be granted in the following situations:

1. An office is administratively closed;
2. An employee is a member of a volunteer fire department or ambulance service and is called to duty during working hours;
3. Pending an investigation of charges made against an employee upon which disciplinary action could be taken; or
4. For any other purpose that has been requested in writing and approved by the commissioner.

The appointing authority shall grant administrative leave hours as straight time off at a later date or as cash payment at the regular hourly rate to employees who are required to work when an office is administratively closed. If an office remains open and an employee is not able to reach the worksite, the employee must use annual leave, compensatory time if applicable, or leave without pay. Appointing authorities shall inform the commissioner of all office closings. (ARSD 55:01:22:14)

ADMINISTRATIVE LEAVE HOLIDAYS

Administrative Leave for the day after Thanksgiving OR Good Friday afternoon.  When the Governor and the Board of Regents declare that the offices under their control are administratively closed the day after Thanksgiving or any other 'holiday,' eligible employees are granted administrative leave for that day.

A few points of clarification:

• Employees who are currently accruing leave are eligible for administrative leave.
• Employees who are on terminal vacation leave DO receive administrative leave.
• Employees who are required to work while on administrative leave will receive both the administrative leave and hours worked.  Those employees who choose to work will have their administrative leave hours reduced by the number of hours worked.
• In the case of the day after Thanksgiving, a full-time employee will be granted 8 hours of administrative leave.  Less than full-time employees who accrue leave should receive an average of the hours worked over the last 3 months.  In the case of Good Friday afternoon, a full-time employee would be granted 4 hours leave.
• An employee who had previously requested sick, annual or comp time leave for these dates would be granted administrative leave for that day and their leave request should be voided or adjusted accordingly.
• If an employee is not normally scheduled to work on Friday, he would receive prorated leave based on the percent time of the appointment (i.e., if you are 60% you should receive 4.8 hours for the day after Thanksgiving and 60% of 4 hours (2.4 hours) for Good Friday.)  A full time employee can never receive more than 8 hours of administrative leave for a date identified as an administrative holiday.

INCLEMENT WEATHER

Effective January 1, 2000, ALL state offices will remain open during inclement weather.  Therefore, any absence by an employee would need to be covered with annual leave, comp time, or leave without pay.  Everyone is to use their own discretion when it comes to the weather.  Work closely with your supervisor to ensure communication is maintained.  What one person may feel comfortable driving in, the next may not.  If you have employees who work in buildings that are not under state control, i.e., the Federal or county, and these offices are closed by the controlling entity, the employee WILL BE REQUIRED to take leave.  ALL state employees regardless of their location will be treated the same.

Supervisors cannot assign staff to work at another location (home) when bad weather occurs and they cannot send employees home early when classes are canceled.